Agents give their account of border death

Maria De la Luz (left, mother of Anastasio Hernandez Rojas) and her daughter in-law, Maria Puga (right, widow of Anastasio Hernandez Rojas) spoke with news reporters at a press conference held at the Alliance San Diego office in North Park. The press conference was calling attention to heighten the call for justice, oversight and accountability.
— Nelvin C. Cepeda

Maria De la Luz (left, mother of Anastasio Hernandez Rojas) and her daughter in-law, Maria Puga (right, widow of Anastasio Hernandez Rojas) spoke with news reporters at a press conference held at the Alliance San Diego office in North Park. The press conference was calling attention to heighten the call for justice, oversight and accountability.
— Nelvin C. Cepeda

U.S. Border Patrol and immigration agents being sued over a 42-year-old Mexican man’s death say he kicked, punched and tried to bite them during a 20-minute struggle before one of the officers shot him with a Taser while he was handcuffed at the San Ysidro Port of Entry, an account detailed in new federal court filings.

The documents were filed Friday as part of a wrongful death suit brought by the family of Anastasio Hernandez Rojas against the federal government and the Border Patrol agents and Customs and Border Protection officers involved in the altercation on May 28, 2010.

The county medical examiner ruled that Hernandez Rojas, a construction worker who had lived illegally in San Diego since he was a child, died three days after the Taser incident from a heart attack. It was brought on by methamphetamine found in his system, an enlarged heart condition and the prolonged struggle with the agents, the medical examiner said.

Hernandez Rojas’ death gained international attention last year when PBS aired cellphone videos that showed him on the ground, surrounded by numerous agents, and getting hit and shocked with the Taser as he cried out for them to stop.

The videos from bystanders prompted a criminal investigation by the U.S. Department of Justice. A federal grand jury also has been hearing testimony in the matter since last year.

The civil lawsuit brought by Hernandez Rojas’ wife and five children in 2011 is set for trial in August. The court filings Friday are pretrial motions from the federal law enforcement officers seeking to dismiss the case and rely heavily on the depositions of border agents and customs officers.

None of the agents and officers is identified by name. Early on in the case, both sides agreed to identify them only by their badge numbers, initials or date of birth during the pretrial discovery portion of the case.

The law enforcement officers described Hernandez Rojas as agitated and confrontational — one supervisor likened him to a “mechanical bull,” kicking and punching at the agents in the final minutes of the confrontation.

That is different from the version outlined in the family’s lawsuit, which says Hernandez Rojas was beaten after he complained of being physically abused by an agent and was refused medical care. He had been arrested that night, along with his brother, in the mountains east of San Diego. They were trying to enter the country illegally from Mexico and were taken to the Border Patrol station in Chula Vista.

Hernandez Rojas was carrying a jug of water, and when one of the agents told him to throw it out he at first refused. Border Patrol policy prohibits carrying water jugs, according to one of the court filings, because they “could be used as a weapon” against agents.

After being told twice to get rid of the jug, Hernandez Rojas eventually went to a trash can and unscrewed its lid, pouring out the water. The agent, who is one of the defendants in the lawsuit, then knocked the jug out of his hands.

Eugene Iredale, the attorney for the family, said that Hernandez Rojas understood the agent to say “get rid of the water,” or something similar. He took the command literally, Iredale said in an interview last week, and did not understand he had to throw out the entire jug.

Once in the station, Hernandez Rojas complained that while he was being searched an agent had kicked his ankles apart, causing pain to an old ankle injury that had required insertion of a pin. Eventually, he agreed to be voluntarily deported to Mexico, lawyers for the law enforcement officers said.

The family’s lawsuit disputes that, saying he did not agree to go and instead wanted a hearing before an immigration judge.

In any event, a supervisor, who is also a defendant in the civil suit, ordered Hernandez Rojas to be taken immediately to the San Ysidro Port of Entry and be deported.

As two agents went to take handcuffs off the deportee at the port of entry and escort him to a crossing point, one agent said Hernandez Rojas became stressed, broke out into a sweat and bumped the agent. One agent said that when they removed the handcuffs Hernandez Rojas began to move around like a “tornado,” and pushed and grabbed at the agents.

Two agents were soon joined by two more agents, but the four could not restrain him. At one point, according to the court filing, one agent struck Hernandez Rojas with a baton to no avail.

With the help of a fifth agent, he was wrestled to the ground on his stomach and handcuffed again. He continued to struggle and banged his head on the ground.

The agents’ version said they then decided to take him back to the Chula Vista station and charge him with assaulting the officers. But Hernandez Rojas again resisted and the agents said they could not be put into a transport car.

He was put back down on the ground, with his hands behind his back. The lawyer for one of the agents said that Hernandez Rojas was continuing to kick at the agents.

At that point, an agent identified only as “#7633” fired his Taser two times into Hernandez Rojas.

The family’s lawsuit said the agent also used the Taser to “stun” him by jabbing it on his body, but the statements from the agents say they were unsure if the stun was activated or not.

Hernandez Rojas stopped breathing and was unresponsive. He was taken to the hospital and died three days later.

Iredale said the cellphone videos taken by bystanders show Hernandez Rojas crying and moaning while agents surrounded him.

The videos show “very clearly the nature of the events, where 20 people surround a handcuffed man who is down on the ground, and nonetheless press on him, strike him and Taser him,” Iredale said.

He called the actions “outrageous” and a violation of Border Patrol regulations and Hernandez Rojas’ rights.

Lawyers for the government and the federal law enforcement officers did not respond to requests for comment on the court filings made Friday.

Also last week, the lawyers for the government and the officers filed a request asking the judge to seal future motions in the case.

They argued that the sealing is needed to protect the safety of some of the agents. The request said that several of the agents are the targets of death threats. Who the threats come from was not described, but the court filing said “at least one of the agents has transferred to another worksite as a result of these death threats.”

It also said the filings will contain personal information on the law enforcement officers as wells as procedures and policies of the agencies that if revealed could hamper enforcement efforts at the border.

Iredale said the request to further seal all pleadings goes too far, and he will oppose it.

“The government shouldn’t be able to resist the transparency that is the hallmark of the court process,” Iredale said. “This involves the killing of a human being. We don’t think the agents should be able to hide not only their identities, but the facts underlying the incident. The government should not be allowed to bury the facts along with the body.”

Hernandez Rojas’ death has become a focus for advocates pressing for more oversight of the Border Patrol along the Southwest border. At a news conference Wednesday in San Diego marking the three-year anniversary of Hernandez Rojas’ death, family members pressed for more details about his death and the deaths of others while in the Border Patrol’s custody.

Customs and Border Protection, which includes the Border Patrol, has been involved in 20 deaths since 2010.